1995 P Cr (PLP)

MALIK MOHAMMAD QAYYUM, J: ‑‑ This appeal under section 3 of the Law Reforms Ordinance, 1972, arises out of Writ Petition No.4724 of 1978 filed by the appellant which was dismissed by a learned Single Judge of this Court on 20‑12‑1978. .2. The facts giving rise to this appeal are that on 29th May; 1979 a case was registered against the appellant and others at Police station Gulberg, Lahore vide F.I.R. No.479 under Martial Law Regulations Nos.39 and 40 (to which Martial Law ‑Regulations Nos.‑13 and 33 were subsequently added) on the allegations that a political meeting was held under a Shamiana pitched in the lawn of Laghari House, 75‑FCC, Gulberg, Lahore in which appellant also participated in violation of the Martial Law Regulations and later on, a procession was also taken out without prior permission of the Martial Law authorities in which objectionable slogans were raised and disaffection was sought to be created against the Chief of the Army Staff.

3. The appellant alongwith his other two co‑accused was tried by the Summary Military Court and having been found guilty was sentenced to one year's rigorous imprisonment on 1st October 1978. He challenged this conviction by filing the Constitutional petition out of which this appeal has arisen, which, as already stated, was dismissed by the learned Single Judge on 20‑12‑1978.

4. In support of this appeal, Mr. Shahid Hamid, learned counsel for the appellant has contended that the meeting held on 29th May, 1979 was a meeting of the members of the executive committee of Pakistan Peoples Party held on the lawns of a private residential house which was enclosed on all the four sides and was as such a "closed door meeting" within the meaning of para. 3 of Martial Law Regulation No.33 as amended by Martial Law Regulations Nos.39 and 40 and as such no offence can be said to have been committed by the appellant by participating in that meeting. It was further argued that there was no evidence on the record to show that the appellant had taken out any procession or participated in it or raised any objectionable slogans and his conviction on these charges was based on no evidence and was liable to be struck down.

5. Mian Abdus Sattar Najam, the learned Advocate‑General, Punjab and Mr. Faqir Muhammad Khokhar, the learned Deputy Attorney‑General of Pakistan, have stated that they do not support the conviction of the appellant or the impugned judgment of the learned Single Judge. They have also expressed their inability to produce the record of the Summary Military Court.

6. Both the contentions raised by the learned counsel for appellant are well‑founded. Martial Law Regulation No. 33 as originally promulgated on 28‑2‑1978 prohibited all political activities. This regulation was, however, amended by Martial Law Regulations Nos.39 and 40 on 23rd August 1978 and 14th September, 1978 respectively to allow limited political activities such as holding of closed door meetings by the members of the executive committee of the political parties. According to explanation to Martial Law Regulation No.33 a meeting was deemed to be a closed door meeting only if it was held in a building other than temporary structure or enclosure or building intended to be used or connected in any manner with any educational institution, placed public entertainment, worship or of religious sanctity and was not open to public in general.

7. In the impugned judgment, the learned Single Judge had himself observed that it was admitted by Mubarik Muzzafar, P.W. during the course of trial that the meeting in question was a meeting of the members of the executive committee of Pakistan Peoples Party. The main reason which prevailed with the learned Single Judge for holding that the meeting did not qualify to be a closed meeting within the meaning of Martial Law Regulation No.33 as amended was that it was held under a Shamiana on the lawns of Laghari House and not a building. We are, however, unable to agree with this interpretation, which to us, with great respect, is unduly narrowed and restrictive.

8. Building was not defined in the Martial Law Regulations and has, therefore, to be given its ordinary natural meaning. In that sense, building includes not only the structure but also attached and appurtenant lawns, courtyards, out‑houses, servant quarters etc. If a lawn or a courtyard is an integral part of the house and is being used by its inmates and inhabitants, as such, it cannot be said that the lawn or courtyard, as the case may be, though situate within the boundary walls and enclosed on all sides would not be a part of that building. In Black's Law Dictionary (Fifth Edition) page 176, building has been defined as a structure or edifice inclosing a space within its walls, and usually, but not necessarily, covered with a roof. In V.C. Bowels v. Law L.R. 9 Eq. 636, it was observed that building would include a garden wall, or a wall, enclosing or defining some portion of a field. Again in Wali Mahomed alias Allah Warayo v. Emperor (111 I.C. 459) it was held that "a courtyard attached to the living rooms walled in on all sides and provided by a door leading to the street which is secured is a building". In Kaloo Khan v. MA. Rahim, Secretary Myanugmya, Municipal Committee A"I R 1923 Rang. 65(2), it was held that the erection of a mere fence or boundary wall is not a building. But where such a wall is built so as to enable the occupier of the main house to use the enclosed area as part of his habitation and not merely as a boundary or fence, it comes within the definition of building. We may also state that the provision being penal in nature has to be construed as favourably to the subject as possible. (see Muhammad Ali v: State Bank of Karachi and another 1973 S C M R 140 and Brig. (Retd.) F.B. Ali and another v. The State P L D 1975 SC 506.

9. While coming to the conclusion that the lawn was not a part of the building, learned Single Judge appears to have been influenced by virtue of explanation, which provides that a temporary structure is excluded from the definition of a building. But this exclusion is limited only to those cases where temporary structures are raised on open places and independent plots but not to the spaces such as lawns or courtyards, which are integral part of house. We are clearly of the view that the meeting in question held at Laghari House was a closed door meeting of the members of the executive committee of Pakistan 8 Peoples Party within the meaning of Martial Law Regulation No.39 and as such, appellant could not have been held to have committed any offence by participating in it.

10. As regards the other charges that the appellant had taken out procession or raised objectionable slogans against Chief of the Army Staff, the learned Single Judge himself observed that no such allegation was made against the appellant in the F.1.R. It was also observed that Malik Safdar Ali, C Magistrate P.W.2 had not named the appellant as one of those who participated in the procession. We, therefore, regret our inability to understand as to how the appellant could be held guilty of these charges. In order to find out as to whether there was any other evidence against appellant, we called upon the Advocate‑General, Punjab and learned Deputy Attorney‑General for Pakistan to' produce record of the Summary Military Court but they have , expressed their inability in this behalf and have on the other hand stated that they do not support the conviction of the appellant.

11. The main reason which prevailed with the learned Single Judge for dismissing the Constitutional, petition was that it was not possible to re appraise the evidence in the exercise of Constitutional jurisdiction of this Court. There can be no cavil with this view but it is equally well‑settled that if an order is not based upon any evidence, it is liable to be struck down in the exercise of power of judicial review. In Rahim Shah v. The Chief Election Commissioner of Pakistan and another P L D 1973 SC 24, it was observed that: "cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order certiorari will be granted." Reference may be made to the case of Federation of Pakistan and another v. Ghulam Mustafa Khar P L D 1989 SC 26 wherein it has been ruled that where the conviction is not based upon any evidence, or mala fide in law or in fact the High Court in the exercise of Constitutional jurisdiction can quash it. In view of what has been stated above, we accept this appeal, set aside the order of the learned Single Judge and declare that the order passed and sentence awarded by the Summary Military Court to the petitioner/appellant on 1st October 1978 was without lawful authority and of no legal effect. There shall be no order as to costs. N.H.Q./H‑145/L Appeal accepted.